Citation: SafeWork NSW v KD & JT Westbrook Pty Ltd (No 2) [2019] NSWDC 15
Court: District Court of New South Wales
Date: 19 February 2019
Judge: Scotting DCJ
Background
The defendant company operated a large livestock station in far north-west New South Wales, running sheep and cattle across approximately 168,000 acres. The company engaged contract musterers, including the deceased worker Ethan Staker, to perform mustering work involving motorcycles ridden across open, uneven terrain.
On 22 September 2014, while pursuing a dingo on a motorcycle, Mr Staker fell and suffered fatal head injuries. He was not wearing a motorcycle helmet at the time. Helmets were available on the property, and some workers had been advised to wear them, but their use was never enforced.
SafeWork NSW prosecuted the company under the Work Health and Safety Act 2011 for breaching its duty to workers by failing to require and enforce the wearing of compliant motorcycle helmets. The company was found guilty after trial (in the earlier verdict judgment, [2018] NSWDC 255), and this judgment deals with sentencing.
Legal Issues
- What monetary penalty was appropriate for a Category 2 offence under s 32 of the Work Health and Safety Act 2011, where the maximum fine is $1.5 million?
- How should objective seriousness, aggravating factors, and mitigating factors be weighed in fixing the penalty?
- What orders, including publication and costs, should accompany the conviction?
Decision
The District Court assessed the objective seriousness of the offence as lying in the mid-range. The risk of serious head injury from riding motorcycles at varying speeds over uneven terrain was known or ought to have been known by the company. Compliant helmets were available on site, and some workers had been advised to wear them, yet the company took no steps to enforce their use or to implement a safe work method statement for mustering work.
The Court identified the death of Mr Staker as a significant aggravating factor, representing the very harm the safety duty was designed to prevent. The failure to have any formal safe work method statement in place, and the company's awareness that workers were not wearing helmets, also weighed against the offender.
In mitigation, the Court took into account that the company had no prior convictions, demonstrated remorse, and had good prospects of rehabilitation. The company had cooperated with the investigation and entered no contest on various factual matters. These factors, combined with the guilty finding after trial (which meant no discount for an early plea applied), informed the final penalty.
The Court imposed a fine of $180,000, well below the $1.5 million maximum but reflecting the mid-range objective seriousness and the applicable mitigating circumstances.
Orders Made
- Conviction recorded for an offence contrary to s 32 of the Work Health and Safety Act 2011 for failing to comply with a health and safety duty, thereby exposing a worker to a risk of death or serious injury
- Monetary penalty of $180,000 imposed
- Order that the offender pay the costs of the proceedings
- Order that the offender publish the details of the court's findings and orders (a "publication order" requiring the company to fund and publish a notice setting out the circumstances and outcome of the case)
Key Takeaways
- A conviction under s 32 of the Work Health and Safety Act 2011 does not require proof that the breach caused the death, only that it exposed a worker to a risk of death or serious injury. The death nonetheless constituted a significant aggravating factor at sentence.
- Providing personal protective equipment on site is insufficient to discharge a work health and safety duty. The District Court found that the company needed to implement, enforce, and train workers on the use of compliant helmets, including contractors.
- Where a business is aware that workers are not using available safety equipment and takes no steps to enforce its use, that inaction will weigh heavily in assessing objective seriousness at sentence.
- Mitigating factors, including no prior convictions, remorse, and good prospects of rehabilitation, can reduce a penalty substantially from the maximum, even where a worker has died as a result of the breach.
- Publication orders are a standard tool in Work Health and Safety Act sentencing, requiring the offender to bear the cost of publicly notifying the circumstances and outcome of the prosecution.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW)
Cases
- SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 (the verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568
- Nominal Offender v GLG Australia Pty Ltd (2006) 228 CLR 529
- R v Youkhana [2004] NSWCCA 412